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HOUSING AUTHORITY OF THE TOWN

OF GREENWICH v. JULIANA WEITZ

(AC 36966)

Lavine, Beach and Sheldon, Js.

Submitted on briefs December 15, 2015—officially released March 15, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Housing Session, Rodriguez, J.)

Richard H. G.Cunningham filed a briefforthe appellant (defendant).

Louis P. Pittocco filed a brief for the appellee

(plaintiff).
Opinion

PER CURIAM. In this summary process action, the

defendant, Juliana Weitz, appeals from the judgment of

immediate possession rendered by the trial court in

favor of the plaintiff, the Housing Authority of the Town

of Greenwich, after she was defaulted for failure to

appear at trial. The defendant claims on appeal that the

trial court erred in ‘‘ordering a default judgment for

failure of the defendant to appear at trial where the

defendant appeared by counsel, counsel requested a

continuance, and when the continuance was denied,

[counsel] stated he was ready to proceed on trial, no

motion was made for default, counsel indicated that

the defendant was not personally present due to illness,

and the court had already indicated that the case would

have to be sent to Stamford for scheduling a trial.’’ We

reverse the judgment of the trial court.

On March 1, 2011, the parties entered into a written

lease agreement, in which the defendant agreed to lease

from the plaintiff an apartment located at 27 Havemeyer

Place in Greenwich. The plaintiff served this summary

process action upon the defendant, a section eight tenant, on February 21, 2014, seeking immediate possession of the subject premises on the ground that the

defendant was allegedly in noncompliance with the

lease because she had failed inspections of her unit on

multiple occasions and had been storing her furniture

in the common areas. On March 19, 2014, the defendant

filed an appearance with the court. The defendant also

filed an extensive answer to the plaintiff’s complaint

on that date. The matter was scheduled for trial on

April 3, 2014. After several continuances,1the trial was

scheduled for June 17, 2014.

On June 17, 2014, the parties, through their counsel,

appeared before the court. The defendant herself was

not present. Counsel for the defendant asked for

another continuance on the basis of the defendant’s

alleged poor health. He indicated that he had attempted

to obtain medical documentation supporting his claims

regarding the defendant’s health condition, but had

been unable to do so in time for the hearing. Despite

the defendant’s poor health, counsel indicated that he

would have someone transport her to court if the

motion for continuance was denied. The parties agreed,

with the court’s approval, to pass the matter briefly and

meet with a housing mediator to attempt to resolve

their dispute. Shortly thereafter, the parties reported

back to the court that although the meeting with the

mediator had been productive, they had not been able

to reach a final agreement. Counsel for the defendant

renewed his request for a continuance on the basis of

the defendant’s health, in addition to personal obligations of his own. Counsel forthe plaintiff objected ‘‘only

because I didn’t want to continue it until a July date. I

would like to get it over with one way or another.’’
The court sustained the plaintiff’s objection and

denied the defendant’s motion for continuance and the

following colloquy ensued:

‘‘The Court: I’m not satisfied—not that yourrepresentations are not sincere, counsel, but I haven’t received

any indication of the . . . defendant’s inability to be

here, and a default will enter. . . .

‘‘[The Defendant’s Counsel]: [R]ather than default

enter, I will commence trial if we have to, rather than

have it continue.

‘‘The Court: We can’t commence trial without your

client, counsel. She’s not here.

‘‘[The Defendant’s Counsel]: I can. I can—

‘‘The Court: You can move to open a default if you

have valid grounds . . . but the default will enter

today.

‘‘[The Defendant’s Counsel]: If I may, I indicated to

. . . Your Honor, if necessary for Your Honor to evaluate, the reason for it, I can have my client brought here

though she is ill, and I would ask for permission to do

so, rather than have a default enter.

‘‘The Court: Anything else?

‘‘[The Defendant’s Counsel]: No, Your Honor.

‘‘The Court: All right. The default will stand.’’

Based upon the default of the defendant for failure

to appear at trial,2

judgment of immediate possession

was rendered in favor of the plaintiff.

On June 24, 2014, the defendant filed a motion to

open the default judgment, explaining that her poor

health—which included severe pain and vomiting—had

prevented herfrom appearing in court on June 17, 2014.3

The plaintiff objected to the defendant’s motion. The

court denied the motion to open and this appeal

followed.

Distilled to its essence, the defendant’s claim is that

the trial court erred in defaulting her for failing to

appear at trial when she had, in fact, appeared through

her counsel, who indicated not only that he would have

her brought to court despite her illness if the court

denied his motion for continuance, but that he was

prepared to proceed with trial in her absence. We agree.

It is well established that ‘‘[e]ntry of a [nonsuit or]

default for failure to appear for trial is a matter left to

the sound discretion of the trial court. . . . Practice

Book § 17-19 provides in relevant part: If a party . . .

fails without proper excuse to appear in person or by

counsel for trial, the party may be nonsuited or

defaulted by the judicial authority.’’ (Internal quotation

marks omitted.) Alexander v. Tyson, 122 Conn. App.

493, 496, 999 A.2d 830, cert. denied, 298 Conn. 928, 5
A.3d 488 (2010).

Here, the court’s sole basis for entering a default

against the defendant was her failure to appear for

trial. However, counsel for the defendant was present

in court, was willing to have the defendant transported

to court despite her illness, and, alternatively, was prepared to proceed with trial.4 Because our rules of practice do not require parties to be present for trial in

civil cases, but permit them, rather, to appear through

counsel, it was error for the trial court to default the

defendant solely on the basis of her absence when her

attorney was present and prepared to proceed.5

The judgment is reversed and the case is remanded

with direction to vacate the default entered against the

defendant and forfurther proceedings according to law.

1 On March 26, 2014, the plaintiff moved for a continuance of the trial

date to April 17, 2014, stating: ‘‘Counsel needs more time to prepare for trial

because of the voluminous answer to the complaint.’’ The court granted the

plaintiff’s motion and the trial was rescheduled for April 17, 2014. On April

16, 2014, the defendant moved for a continuance of the trial date to May 1,

2014, due to her ‘‘illness/disability.’’ The trial was rescheduled to May 6,

2014. On May 1, 2014, the defendant, through her newly retained counsel,

sought a continuance of the trial date on the grounds that he was ‘‘just

retained, case complicated,’’ and that he was not available because he was

scheduled for a jury trial in another matter commencing on May 5, 2014.

The court granted the motion for continuance and the trial was rescheduled

to May 15, 2014. On May 15, 2014, the parties met with a housing mediator,

but were unable to settle their dispute. The trial was continued to June 5,

2014. The defendant filed another motion for continuance, stating: ‘‘Defendant is unable to appear due to illness. Defendant is requesting a continuance

as a result of a recent diagnosis of hepatitis and recurrent bouts of pancreatitis. Defendant’s physician has strongly advised defendant to return to hospital for treatment, which defendant will comply with treating physician’s

advice as defendant’s symptoms are worsening.’’ The plaintiff objected to

the motion for continuance on the ground that no medical evidence had

been submitted concerning any of the alleged illnesses. The court sustained

the objection and denied the motion for continuance. On June 5, 2014, the

parties again met with a housing mediator, but again were unsuccessful at

resolving their dispute. The trial was continued to June 17, 2014.

2

It is noteworthy that the plaintiff never moved for a default of the

defendant.

3 The defendant presented medical records in support of her motion to

open the default judgment.

4 The record reflects that the court intended to transfer the case to Stamford for trial due to its complexity and forecasted duration. The entry of a

default for failure to appear on June 17, 2014, when trial was not, in fact,

going to proceed, is thus even more puzzling.

5 Because we reverse the court’s judgment on this basis, we need not

address the defendant’s additional claims of error.